Tuesday, March 4, 2014
Mark your calendars. The National Consumer Voice for Quality Long-Term Care is holding a webinar on March 13, 2014 from 3-4:30 p.m., est. Toby Edelman, Senior Policy Attorney for the Center for Medicare Advocacy (CMA), is the speaker for this webinar, Medicare Observation Status and Improvement Standard in Skilled Nursing Facilities: What Advocates and Consumers Need to Know. The webinar will cover the following:
After briefly reviewing requirements for Medicare coverage of a stay in a skilled nursing facility, this webinar will discuss in depth how to overcome two obstacles to coverage – observation status and the myth of medical improvement. Observation status refers to the label of “outpatient” that hospitals assign to patients who are hospitalized, often for multiple days, depriving them of the three-day inpatient status that is necessary for Medicare coverage in a SNF. The settlement in the Vermont lawsuit Jimmo confirms that Medicare pays for “maintenance” nursing and therapy for nursing home residents, dispelling the myth that Medicare pays for care only when a resident will “improve.” Learn how to advocate effectively for Medicare beneficiaries, and where advocates and consumers can get help.
The cost for the webinar is $50. Unable to attend? You can obtain a subsequent podcast (mp3) for $15.00. To register or for more information, click here.
Michael Astrue, who served as Commissioner of the Social Security Administration for six years, has written a blog post for the Special Needs Alliance on working with SSA. It's a must read for anyone who has dealings with the agency.
Our good friend and Elder Law superstar Dick Kaplan sent me a note about the 2014 lecture that was held on March 3, 2014. Professor Lawrence O. Gostin from Georgetown Law spoke on Governing for Health as the World Grows Older: Challenges and Opportunities for Healthy Lifespans in Aging Societies." The website offers this description of his presentation:
The challenge of global aging is significant and universal. Almost 700 million people are now over the age of 60, and by 2050, 2 billion people—over 20% of the world’s population—will be 60 or older. Today, almost two in three people over 60 live in developing countries, and by 2050, nearly four in five of those over 60 will live in the developing world. In the coming decades, the shift to an older demographic will be a fundamentally important dynamic for global health and must shape the way the international community works towards the goal of addressing health disparities within and across societies.
Professor Gostin's new book on Global Health Law was released on the same day as the lecture.
The official press release issued on February 20 confirmed big news in the senior care industry about the merger of Brookdale Senior Living, based in Tennessee, and Emeritus Senior Living, originally headquartered in Seattle. Here are some of the details, as reported in the Nashville Business Journal:
"The company's corporate headquarters will remain in Nashville, and members of Emeritus' senior management team are expected to stay on board at the combined company. The merger will expand Brookdale's unit capacity by two-thirds, pushing the company into 10 new states. In total, the combined company will have operating capacity of approximately 112,700 units in 1,161 communities in 46 states. Following the merger, a Brookdale community will be within 10 miles of 6.5 million seniors 80 years or older, according to the release."
Emeritus earlier attracted high-profile press when it became one of the subjects of a Frontline series on "Life and Death in Assisted Living," by Pro-Publica. According to the Nashville Business Journal, as reportedly confirmed after news of the merger, "federal investigators are investigating Emeritus' business dealings, including its Medicaid billing practices."
It would seem this merger will continue to generate news for some time to come, as suggested by this press release from securities lawyers Deans & Lyons.
Monday, March 3, 2014
The National Long-Term Care Ombudsman Resource Center has released fact sheets on preventing, discovering and reporting financial exploitation of residents in ALFs and nursing homes. The fact sheets fall into two categories: for residents and friends and family. There are 2 specifically for ALFs and 2 for nursing homes. "The ... fact sheets provide an overview of residents’ rights and facility responsibilities related to resident finances, tips for protecting themselves and how to report incidents of financial abuse. The fact sheets for family and friends of residents also review residents’ rights and facility responsibilities, highlight warning signs and how to report incidents of financial exploitation."
NAELA is offering a three-webinar series on Social Security. The first webinar, scheduled for March 5, 2014 from 3-4 p.m. features Avram Sacks and will cover an overview, offering "tips on Social Security procedure and provide guidance on options for clients." The second is scheduled for March 26, 2014 and will cover "disability law and practice including how to file a claim, the five-step disability determination process, the administrative appeals process, continuing disability review, the Ticket to Work program, and hearing tips." The final webinar, set for May 7, 2014 will cover "how a benefit is calculated, the factors to consider when determining when one should file a claim for Social Security retirement benefits, how best to maximize household retirement benefits, and different considerations for single individuals, married couples, and divorced individuals."
The series is free to members of NAELA's Government Assistance Program section. NAELA members (who don't belong to the section ) pay $69, and non-NAELA members pay $269. To register, click here.
CMS recently shared proposed regulations for the Medicare prescription drug program (Part D) and the Medicare managed care program (Part C) for public comment. Several of the proposals represent important steps in improving the program and protecting beneficiaries. They include proposals ensuring meaningful differences between Part D plans; increasing drug pricing transparency, fairness and accuracy; enhancing plan oversight; improving notices; and strengthening MA plan requirements for Part D denials. One provision, which would scale back the protected drug classes is of serious concern. A few other proposals are a mixed bag needing some modification.
The Issue: Unfortunately, the health plan industry group, unhappy with the prospect of increased oversight and stricter regulation, is spearheading a major campaign to scuttle the entire regulatory package, claiming that increased regulation will threaten the Part D program. It is very important for advocates to push back by supporting beneficiary-friendly provisions.
The alert provides a step by step explanation on how to submit comments, including a template. The deadline for comments is Friday, March 7, 2014 at 5:00 p.m.
While working in Ireland in 2010, I attended a conferencen in Dublin where the theme was "turning silver into gold." I was impressed when I arrived, as the conference was sold out and it was standing room only. Speakers came from a wide range of academic and business fields, and the day ended with roundtable brainstorming sessions about business opportunities in serving the needs of seniors. There was a lot of creative energy in the room.
At the same time, I recognized the possibility that the economic crisis that was in full sail at the time, deeply affecting Ireland, could be triggering both creativity and desperation. Free enterprise often seems to walk the fine line between capitalizing on need and exploiting it. Seniors may be particularly vulnerable as clients, if the fine line is breached.
I was reminded of the potential for duality as I read a very interesting article in the New York Times, by Jill Caryl Weiner, "Of Crime and Punishment, Redemption and Aerobics." Here are two paragraphs from the thoughtful exploration of a senior fitness business plan, that started small with aerobics classes in senior centers:
"Mr. Mickens dreams big. Right now, as president and C.E.O. of the Tommy Experience, a fitness company focused on older adults, he says he wants to turn his company into an international brand, as big as Bally Total Fitness and Equinox. He envisions sports merchandisers like Nike and Under Armour sponsoring his company and providing comfortable workout clothes for the 60-and-above set, 'to sponsor their grandmothers, aunts and grandfathers like they would sponsor kids or a team.'
While his stated mission is to help older people transform themselves, it is also about his own transformation — and redemption. In 1989, Mr. Mickens, then 25, was convicted of conspiracy to distribute cocaine, money laundering and tax evasion. He was fined $1 million and sentenced to 35 years in federal prison."
It is good to read about redemption and senior services coming together in healthy ways, with the hope that everyone also "exercises" healthy realisim about the business model.
Friday, February 28, 2014
CMS has released a new State Medicaid Director Letter regarding Application of Liens, Adjustments and Recoveries, Transfer-of-Asset Rules, and Post-Eligibility Income Rules to MAGI Individuals. Released February 21, 2014, SMDL #14-001, ACA #29, the letter is divided into two parts: "Liens, Adjustments and Recoveries, and Transfers of Assets" and "Post-Eligibility Treatment of Income." The letter:
provides guidance to states on how the long-term services and supports-related rules, including the estate recovery rules ... and federal regulations ... apply to individuals who are eligible for Medicaid under Modified Adjusted Gross Income (MAGI) eligibility rules ("MAGI individuals") and receive coverage for long-term services and supports (LTSS).
This letter is worth reading.
In the February 7 disbarment of Kansas attorney Daniel R. Beck, the disciplinary record describes a cascading series of events (including the fact that Beck continued to practice law while on administrative suspension). The heart of the case is the attorney's role in execution of "updated" estate planning documents.
During the disciplinary proceedings, Beck was found to have directed a man to forge the signature of the man's mother, a 90-year old woman in a nursing home, on key documents. Further, the attorney forged the name of his own secretary as the notary on the documents that included a family trust, a general durable power of attorney, a living will, a last will and testament, a health care power of attorney, an assignment of personal property, and an authorization to release health care information.
The attorney had drafted the original estate plan for the woman and her then-husband. In preparing and executing the "updated" documents, he was interacting solely with the son, although the record does not suggest the son was seeking or receiving any "benefit" from the changes.
In attempting to avoid major sanctions, the attorney argued that some of the updates, such as a "new" power of attorney and healthcare power of attorney, were necessary "because in his experience sometimes hospitals and financial institutions would not honor those documents if the documents are from a long time ago." At the same time he argued the updated documents made no substantive changes to the existing plan. No harm, no foul as a defense? The Kansas Supreme Court rejected the argument that the attorney's actions caused no harm to the woman in the nursing home, who died a few months after her signatures were forged:
"Respondent [Beck] admits L.H. was vulnerable but asserts that we must construe the word 'victim' to require a showing that the attorney's conduct 'actually exposed] [a] vulnerable client to real and significant harm,' and argues such as showing was not made in this case.
We need not decide whether the term 'vulnerable victim' requires that an attorney expose a client to actual harm because we conclude the record contains adequate evidence of injury, including $2,800 L.H.'s trust paid to respondent for legal work L.H. never authorized, approved, or used....
Moreover, since respondent never spoke to L.H., he can only speculate as to whether the documents he drafted could comport with L.H.'s current wishes. Put simply, an attorney injures, or at least potentially injures, a client when he or she takes legal action on the client's behalf without ever speaking with the client or ensuring that the proposed action is in accord with the client's wishes."
Hat tip to ElderLawGuy Jeff Marshall for this interesting opinion.
Thursday, February 27, 2014
The February 26, 2014 volume of JAMA contains an article on medical homes. Written by Dr. Mark W. Friedberg, Dr. Eric C. Schneider, Dr. Meredith B. Rosenthal, Dr. Kevin G. Volpp, and Dr. Rachel M. Werner, the article, Association Between Participation in a Multipayer Medical Home Intervention and Changes in Quality, Utilization, and Costs of Care, focused on a pilot project in Pennsylvania. The abstract notes that the goal of the study was "[t]o measure associations between participation in the Southeastern Pennsylvania Chronic Care Initiative, one of the earliest and largest multipayer medical home pilots conducted in the United States, and changes in the quality, utilization, and costs of care." The abstract offers this conclusion: "[a] multipayer medical home pilot, in which participating practices adopted new structural capabilities and received NCQA certification, was associated with limited improvements in quality and was not associated with reductions in utilization of hospital, emergency department, or ambulatory care services or total costs over 3 years. These findings suggest that medical home interventions may need further refinement." A subscription is required to access the full article. The website also has an interview with the author.
Amy Ziettlow, of the Institute for American Values (IAV), has written a recently released report, Seniors in Casino Land: Tough Luck for Older Americans.
According to the report,
IAV and its partners are conducting a series of investigations called “Casino Land: America in an Age of Inequality.” The goal is to understand the meaning and role of casinos in American life—how they work and what they do, the values they embody and transmit, their impact on civil society, their connection to government, and their relationship to the rise of American inequality. This report is a part of that series.
Ms. Ziettlow visited several casinos and "simply sat down next to strangers, asked questions, and listened." The final section of the report is titled "Why Seniors Matter" and offers an analysis of her experiences as well as a discussion of the contrasts between senior centers and casinos. As a huge fan of senior centers myself, I appreciated this recommendation from her:
Now is the time to expand upon these efforts to create environments that foster fellowship, service, physical activity, healthy eating, and quality connections between seniors and the surrounding local community. The vulnerable aging in society deserve meaningful opportunities for recreation and relaxation that reconnects them to their deepest sense of self; activities that allow them to be honest about disability and loss without being defined and crushed by that awareness, that foster growth in their physical, emotional, and spiritual capabilities. (pg. 42, citations omitted).
A few weeks ago, I needed to compile a list of words and phrases that would enable my publisher to create an index to a forthcoming book. I found a very cool software program called Hermetic Word Frequency Counter that really made the job easy. The program reviews the entire document (in this case, a 400 page book) and lists every word in the document (other than a pre-set list of 100-odd words like "and" "or" "the" etc.) and the number of times that word appears. The information is presented in descending order. The program runs quickly, and it made a task that could have taken hours incredibly simple.
Hermetic Word Frequency Counter isn't free, but I think it was worth the $39.99 that I paid for a perpetual license. Check it out here.
Mark your calendars for the March 4, 2014 webinar Dual Eligible Demonstrations: An Update for Advocates. The webinar is hosted by the National Senior Citizens Law Center (NSCLC) and is free. The one hour webinar starts at 2:00 p.m. est and will cover:
Questions and Answers in the three-way contracts
State three-way contract comparison
Early implementation lessons
Recent MMCO guidance
Click here to register for the webinar.
Hat tip to Penn State Law Student Kevin Schock for sending this news!
Actor Seth Rogen, organizer of Hilarity for Charity, uses humor to call attention to the need for better funding to fight Alzheimer's, and on Wednesday brought his humor to the U.S. Senate. Here he is in testimony before the Senate Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, describing the struggle of his own wife's family with early onset dementia.
As earlier reported on this Blog, the Court of Common Pleas of Schuylkill County in Pennsylvania, dismissed the high profile criminal charges against Barbara Mancini, the nurse charged with "causing or aiding" the suicide of her aged father, in violation of 18 Pa.C.S. Section 2505(b). The ruling reviewed testimony presented during a preliminary hearing before a magistrate, as required by the defendant's petition for a writ of habeas corpus. Much has been said by proponents and opponents of assisted suicide in connection with this ruling, but here is the actual opinion, all 47 pages.
The opinion demonstrates a high level of emotion for everyone involved in the case, including the judge. There was a gag order in place during the last several months, so key details about the evidence or the arguments made by counsel are only now available. So, please forgive me if I now use the blogger's prerogative to do more than just report the facts. Three starting points:
- What strikes me as important about this ruling is that it should not be misconstrued as a "win" for those who claim there is a constitutional or other legal right to provide or receive assistance in death. At least not in Pennsylvania under its current law.
- Further, a careful reading of the opinion demonstrates the potential for more confusion (and additional cases) for those who interpret -- misinterpret -- Powers of Attorney, Advance Health Care Directives, Living Wills, or Do Not Resuscitate Orders as granting them legal authority to provide assistance in suicide. Again, that is not the current law in Pennsylvania, or in most other states.
- Finally, a careful reading of the opinion makes it clear -- at least to me -- that the hospice aides who called 9-1-1 in response to the facts in front of them, were acting within the law. They were responding to what the opinion documents fairly well as "admissions" of the criminal act of assisted suicide, facts that took the matter beyond the patient's right to accept or reject life-saving efforts.
In terms of "proof" of a criminal act, the opinion demonstrates the importance of careful preparation of a criminal case when called upon to demonstrate the prima facie elements of the crime charged, as occurs during a preliminary hearing. That is the job of the prosecution team, not the hospice workers. The prosecution, in this instance the Pennsylvania Attorney General's office, either failed or was unable to present independent proof of the facts alleged, and instead were focusing almost solely on the "admissions."
In Pennsylvania, as the opinion discusses, the prosecution needed to present evidence of the person's intention to kill himself, action taken to effectuate the suicide, the third-party's intentional aid or assistance in that attempt, and evidence that the third party's action actually "caused" the attempted suicide. Under Pennsylvania's corpus deliciti rule, the prosecution had to establish these elements without "just" relying on the defendant's own alleged admissios or confession. In particular, the opinion shows the importance of expert testimony to establish cause of death, needed in this case to explain "morphine toxicity."
What the entire case also suggests -- not just the opinion -- is the need for Pennsylvania, and most states, to give fresh consideration to the topic of assisted suicide. The record makes it pretty darn clear that Joe Yourshaw had lived a long life, fought the good fight, was ready to die, was tired of living in pain, and he was competent when talking about his wishes to die. We cannot just stick our heads in the sand and say "this case isn't likely to happen again."
The tragedy associated with the last days of Joe Yourshaw and the confusion surrounding the circumstances under which Barbara Mancini, his daughter, was charged, are events that can and should permit Pennsylvania, like Oregon and Washington before it, to consider whether competent individuals with terminal illnesses should be permitted to work directly with health care professionals to make carefully considered decisions about whether to choose professional assistance with their death. Sons, daughters and spouses, whether or not "nurses," should not be put in this position, and other states have shown us there are options.
Some people will argue that the real tragedy would be to leave loving family members with no option but to violate the law (and either face the potential for criminal prosecution or "hide" the evidence) or turn a blind eye and deaf ear to a loved one's carefully considered pleas. As you may be able to tell, while I think the hospice workers in this case were right to report the evidence they saw and heard that pointed to violation of Pennsylvania's current law, I'm one of those people ready to reconsider that law.
Wednesday, February 26, 2014
Congrats to our co-blogger, colleague and dear friend, Kim Dayton and her co-author Molly Wood, on the publication of their 4th edition of Elder Law: Readings, Cases, and Materials by Carolina Academic Press. This edition is totally digital and has links to statutes, cases and materials on the web. Another nice feature is the 50-state statute tables that are included in a number of chapters. The book is available for purchase on iTunes or Amazon. You can request a review copy by sending an email to email@example.com with the name of your course, the semester it will be offered and the estimated enrollment.
You ROCK Kim Dayton!!!
Following up on Becky's post of Feb. 25 regarding some recent CRS Reports--I'm using a number of CRS reports in a class I am designing for Valparaiso's new health management and policy master's program. These include:
Medicare, A Primer Download Medicare Primer CRS
Medigap: A Primer Download Medigap CRS
Medicaid, An Overview (referenced by Becky) Download CRS Medicaid an Overview
Medicaid Coverage of Long Term Services and Supports Download Medicaid LTC CRS
Health Care Fraud and Abuse Laws AffectingMedicare and Medicaid: An Overview Download Fraud and Abuse CRS
Medicare Secondary Payer:Coordination of Benefits Download Fraud and Abuse CRS
Overview of Private Health Insurance Provisions in the Patient Protection and Affordable Care Act (ACA) Download Private Health Insurance ACA CRS
CRS reports aren't generally made available to the public, but I have had great luck over the years in obtaining them simply by contactiing one of the authors and requesting a copy.
AARP recently launched a new multi-state caregiving advocacy campaign, with nearly every AARP State Office involved. Working with governors, state legislators, other policymakers and community partners, we’re determined to advance policy options that will help family caregivers. Two significant components of the campaign are:
- The Caregiver Advise, Record, Enable (CARE) Act Caregiver Advise, Record, Enable (CARE) Act, and
- The State Plan in Support of Family Caregivers, also referred to as the Caregiver Resolution.
The Caregiver Advise, Record, Enable (CARE) Act.
- In Oklahoma SB 1536 – the Oklahoma version of the CARE Act – just passed the Senate and will be heard in the House soon. Meanwhile, Governor Mary Fallin declared this month as “February Caregiver Month” to honor the state’s 600,000 family caregivers.
- AARP Hawaii, is urging the Senate Judiciary Committee to pass Senate Bill 2264, the Hawaii equivalent of the CARE Act. AARP members in Hawaii are now contacting members of the committee asking them to support the 169,000 family caregivers in the state by passing Senate Bill 2264.
By passing the CARE Act these states will ensure that:
The name of the family caregiver is recorded when a loved one is admitted into a hospital or rehabilitation facility.
The family caregiver is notified if the loved one is to be discharged to another facility or back home.
The facility must provide an explanation and live instruction of the medical tasks – such as medication management, injections, wound care, and transfers – that the family caregiver will perform at home.
A new report from Javelin Strategy & Research , 2014 Identity Fraud Report: Card Data Breaches and Inadequate Consumer Password Habits Fuel Disturbing Fraud Trends is available for purchase from Javelin, or a sample report can be downloaded here. According to information about the report,
In 2013, 13.1 million consumers suffered identity fraud – the second highest level on record. Existing card fraud (ECF) became increasingly popular with criminals, contributing to the near-record number of identity fraud victims. Javelin’s “2014 Identity Fraud Report” provides a comprehensive analysis of fraud trends in the context of a changing technological and regulatory environment in order to inform consumers, financial institutions and businesses on the most effective means of fraud prevention, detection and resolution.